NDAA 2013 still allows for military detention within the US

The law allowing for indefinite detention of Americans without trial has been stripped from next year’s National Defense Authorization Act, but tweaks to the NDAA don’t mean the possibility of extrajudicial imprisonment has been eliminated for all.

When US President Barack Obama signed into law the annual
defense spending bill for 2012, he acknowledged that he had
reservations about a provision that allows the government to lock
up any United States citizen without providing them with a trial in
a court of law. Although Pres. Obama swore to not abuse that clause
in such a way that Americans would be at risk of imprisonment, the
White House has relentlessly
challenged in federal court all efforts to remove the controversial
indefinite detention clause from the NDAA. The US Senate has now
approved a draft of the defense spending bill for the next fiscal
year, and with it has signed off on a promise to ensure habeas
corpus for all American citizens. Legal protection is not provided
for unlawful immigrants and aliens, however, opening up the
possibility of domestic military enforcement of draconian laws.

When the Senate voted unanimously to approve the 2013 NDAA
on Tuesday, they gave the go-ahead to an amendment introduced by
Sen. Dianne Feinstein (D-California) that on the surface resembles
a surefire fix to the previous year’s provision.

“An authorization to use military force, a declaration of
war or any similar authority shall not authorize the detention
without charge or trial of a citizen or lawful permanent resident
of the United States apprehended in the United States, unless an
Act of Congress expressly authorizes such detention,” reads
the amendment, which is co-sponsored by Senators Mike Lee (R-Utah)
and Rand Paul (R-Kentucky)

The language, Sen. Feinstein says, clarifies that no US citizen
can be detained for war crimes without be charged and taken to
trial, ideally allowing critics of the current NDAA to sign a
breath of relief. Upon further inspection, though, Sen. Feinstein’s
fix still leaves the door open for Congress to consider indefinite
detention without due process for other residents of the US and may
allow for the usage of American troops to enforce the law on
American soil.

“It might look like a fix, but it breaks things further.
Feinstein's amendment says that American citizens and green-card
holders in the United States cannot be put into indefinite
detention in a military prison, but carves out everyone else in the
United States,” explains Chris Anders, an attorney with the
Washington, DC legislative office of the American Civil Liberties
Union.

According to Anders, the Feinstein Amendment has at least three
serious faults that could pose problems starting next year. “It
would not make America off-limits to the military being used to
imprison civilians without charge or trial,” he writes,
“…because its focus on protections for citizens and green-card
holders implies that non-citizens could be militarily
detained.”

“The goal should be to prohibit domestic use of the military
entirely,” writes Anders. “That's the protection provided
to everyone in the United States by the Posse Comitatus Act. That
principle would be broken if the military can find an opening to
operate against civilians here at home, maybe under the guise of
going after non-citizens. This is truly an instance where, when
some lose their rights, all lose rights – even those who look
like they are being protected.”

Additionally, Anders says the Feinstein Amendment is
inconsistent with the US Constitution because that document
declares due process for everyone within the country, including
immigrants who have not been granted legal citizenship. It could
also, he fears, set dangerous precedents for Congress.

“[T]hat the military may have a role in America itself, that
indefinite detention without charge or trial can be contemplated in
the United States and that some immigrants can be easily carved out
of the most basic due process protections,” are all possible
consequences of enacting the proposed NDAA, Anders says.

Speaking to Raw Story about what could come to the country under
the Feinstein Amendment, Anders adds that “nobody really
knows” since Congress’ interpretation of the bill could differ
from that of the ACLU and other anti-NDAA advocates. Should
Congress decide to decipher the language in one way, he says, grave
implications could occur.

“The Feinstein amendment may imply that the military has the
right to act within the United States. There’s been a longstanding
principle that the Constitution applies to all persons in the
United States. We don’t divide up who gets rights by citizenship
status. Nobody gets thrown under the bus in terms of due process in
the United States,” he says.

The ACLU, Amnesty International and the Center for
Constitutional Rights are just a few of the 20 organizations who
appealed the Feinstein Amendment’s supporters in the days before
this week’s vote in hopes that lawmakers would reconsider. With the
Senate unanimously approving the NDAA by a vote of 98-0, though,
nothing short of a veto from the White House is likely to stop the
defense spending bill from passing in its present form.

That doesn’t mean that an executive veto is out of the question,
though. Just last week, the White House said that they opposed the
latest incarnation of the NDAA and would recommend an official veto
to the president should the bill pass. It’s not the indefinite
detention discussion that is spurring their argument, however, but
one related to another heated issue brought up in the bill:
Guantanamo Bay.

In the latest version of the NDAA, the US military prison in
Guantanamo Bay, Cuba would be essentially forced to remain open
throughout 2013, despite President Obama’s renewed pleas to shut
down the controversial detention facility for good. Because the
most recent draft of the bill includes a measure that will prevent
Gitmo detainees from being relocated to other facilities, either in
the US or abroad, the White House says Pres. Obama will be asked to
reject it.

The measure’s sponsor, Sen. Kelly Ayotte (R-New Hampshire), says
that the White House’s efforts to try and distance itself from the
ongoing Guantanamo debate by bringing the military prison to a
close once and for all will not sit well with American’s eager to
see suspected terrorists brought to justice. That claim was echoed
in Senate when his measure passed by a vote of 54-to-41 on
Thursday.

“The administration may want to close Guantanamo, but the
American people do not want foreign terrorists like Khalid Sheikh
Mohammed brought to the United States,” Ayotte said.

“Simply stated, the American people don’t want to close
Guantanamo Bay, which is an isolated, military-controlled facility,
to bring these crazy bastards that want to kill us all to the
United States,” added Sen. Lindsay Graham (R-South Carolina).
"Most Americans believe that the people at Guantanamo Bay are
not some kind of burglar or bank robber," Graham said.
"They are bent on our destruction. And I stand with the
American people that we’re under siege, we’re under attack and
we’re at war."

The House of Representatives must now come to terms with the
latest draft of the NDAA approved by the Senate. From there, it
will be up to Pres. Obama to sign the legislation into law. The
ACLU and other groups are recommending a veto on the basis that it
will impede the president’s ability to finally close down
Gitmo.

Presidents Carter, Reagan, Clinton and George W. Bush have each
vetoed an NDAA during their time in the White House.